Artur v. Garland

1

JOE RICHARD ARTUR, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent.

No. 23-9554

United States Court of Appeals, Tenth Circuit

April 25, 2024

Petition for Review

Before MATHESON, EID, and CARSON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Scott M. Matheson, Jr. Circuit Judge

Joe Richard Artur petitions for review the Board of Immigration Appeals' ("BIA" or "Board") order denying his motion to reconsider the BIA's denial of his motion to reopen his removal proceedings. We dismiss the petition in part for lack of jurisdiction and, exercising jurisdiction under 8 U.S.C § 1252(a), deny the remainder of the petition.

I. BACKGROUND

A. Removal Proceedings

Mr. Artur is a native and citizen of Ghana. He was admitted to the United States in June 2004 as a nonimmigrant visitor with authorization to remain no later than September 17, 2004. The Department of Homeland Security filed a Notice to Appear ("NTA") in the immigration court on June 15, 2011, charging him with removability under 8 U.S.C. § 1227(a)(1)(B) for having remained in the United States longer than permitted. The NTA did not designate a date or time for his initial removal hearing. On June 16, 2011, the immigration court mailed Mr. Artur a Notice of Hearing ("NOH"), which set the date and time for the hearing. Following a merits hearing, an immigration judge ("IJ") found Mr. Artur removable and denied his applications for asylum, withholding, and relief under the Convention Against Torture. On July 17, 2013, the BIA dismissed Mr. Artur's appeal from the IJ's removal order. Mr. Artur filed a petition for review, which we dismissed in part and denied in part. See Artur v. Holder, 572 Fed.Appx. 592, 593 (10th Cir. 2014).

B. Motion to Reopen

On January 9, 2019, Mr. Artur filed a motion to reopen "sua sponte"^[1] and remand to allow him to file an application for cancellation of removal for certain nonpermanent residents. To be eligible for that relief, a nonpermanent resident must demonstrate, among other things, that he "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [the cancellation] application." 8 U.S.C. § 1229b(b)(1)(A).

In his motion to reopen, Mr. Artur argued that Pereira v. Sessions, 585 U.S. 198 (2018), constituted a fundamental change in the law warranting sua sponte reopening. In Pereira, the Supreme Court held that an NTA "that fails to designate the specific time or place" of a removal hearing is insufficient to trigger the statutory "stop-time rule" that cuts off a noncitizen's continuous physical presence in the United States. 585 U.S. at 208-09.^[2] Mr. Artur argued that because his NTA did not include the "time and place"^[3] of his removal hearing, Pereira dictated that it did not trigger the stop-time rule, and he therefore met the 10-year physical presence requirement. ROA, Vol. 1 at 164-65. He also argued that he met the other three requirements for cancellation eligibility (that "he has been a person of good moral character during such period," has no convictions of certain enumerated offenses, and his "removal would result in exceptional and extremely unusual hardship" to a qualifying family member, § 1229b(b)(1)(B)-(D)).

On May 10, 2019, the BIA denied the motion to reopen as untimely because it was filed more than 90 days after the final removal order. See 8 U.S.C. § 1229a(c)(7). The BIA also declined to reopen sua sponte, rejecting Mr. Artur's reliance on Pereira. The BIA instead relied on a post-Pereira case, In re Mendoza-Hernandez, 27 I. &N. Dec. 520, 529 (B.I.A. 2019), which held that if an NOH contains the required information regarding the time and place of the initial removal hearing, it perfects a deficient NTA and triggers the stop-time rule. The BIA found that the NOH in Mr. Artur's case cured the defective NTA and cut off his continuous physical presence in 2011, short of the required 10 years. The BIA noted Mr. Artur had submitted evidence that might otherwise tend to support cancellation, but it declined to reopen sua sponte based on the failure to demonstrate prima facie eligibility given his insufficient continuous physical presence.

C. Petition for Review; Motion to Reconsider and Remand

On June 5, 2019, Mr. Artur filed a petition for review of the order denying his motion to reopen. The next day, he filed with the BIA a "Sua Sponte Motion to Reconsider and Remand Based on Intervening Case Law," seeking reconsideration of the denial of his motion to reopen based on a Ninth Circuit case rejecting Mendoza-Hernandez. ROA, Vol. 1 at 7-13. While his motion to reconsider was pending, we granted Mr. Artur's petition for review. See Artur v. Barr, 819 Fed.Appx. 618, 621 (10th Cir. 2020) ("Artur II"). We based our decision on an intervening Tenth Circuit case, Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020), which concluded that "the stop-time rule is triggered by one complete notice to appear rather than a combination of documents," id. at 1178, and rejected the reasoning of Mendoza-Hernandez, see id. at 1179-80. We remanded for the BIA to consider the motion to reopen in light of our decision in Banuelos.

D. Niz-Chavez Decided

In 2021, while Mr. Artur's motion for reconsideration and our remand were still pending before the BIA, the Supreme Court issued Niz-Chavez v. Garland, 593 U.S. 155 (2021). There, the Court held (consistent with Banuelos) that only one complete NTA triggers the stop-time rule. See id. at 163 ("[T]he government must issue a single statutorily compliant document to trigger the stop-time rule.").

E. Proceedings on Remand

On remand, the BIA denied Mr. Artur's motion to reconsider its denial of his motion to reopen. The BIA acknowledged that in light of Niz-Chavez and Banuelos, Mr. Artur appeared to have the required 10-year period of continuous physical presence, but the "threshold issue" was whether the motion to reopen was untimely. ROA, Vol. 1 at 4. The BIA determined the 2019 motion to reopen was untimely because it was filed more than 90 days after the BIA's dismissal of Mr. Artur's administrative appeal in 2013. The BIA noted that Mr. Artur had "made no argument that an exception to the general 90-day deadline applied or that equitable tolling could remedy the untimeliness of his motion." Id.

The BIA next concluded that Mr. Artur's lack of diligence counseled against sua sponte reopening. It reasoned that even though Niz-Chavez "had yet to be decided," Mr. Artur "could and should have raised a statutory argument concerning the deficiency of the NTA on or before the . . . final hearing" before the IJ in 2012, "or, at the latest, before the BIA when this matter was last before [the BIA] on appeal." Id. The BIA observed that the argument was available based on the plain language of the immigration laws (termination of continuous period under § 1229b(d)(1) and § 1229(a)'s listing of requirements for NTA). But "instead of arguing eligibility for cancellation of removal, [Mr. Artur] opted not to seek such relief," and he had "not shown a reasonable excuse for his extensive delay in contesting the NTA or his decision to wait until Niz-Chavez was issued before seeking cancellation of removal." Id. at 5.

In support, the BIA relied on Mejia-Padilla v. Garland, 2 F.4th 1026, 1030-34 (7th Cir. 2021), where the Seventh Circuit held that a noncitizen could not seek equitable tolling for an untimely motion to reopen based on defects in the NTA made clear in Pereira. The BIA added that "sua sponte authority is not a general remedy for any hardships created by the time and number limitations in the motions regulations; rather, it should be invoked sparingly, as an extraordinary remedy reserved for exceptional situations." ROA, Vol. 1 at 5 (quotations omitted).

II. DISCUSSION

A. Standard Of Review

We review BIA decisions on motions to reopen and motions to reconsider for an abuse of discretion. Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017) (motions to reopen); Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015) (motions to reconsider). "The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Qiu, 870 F.3d at 1202 (quotations omitted). "[C]ommitting a legal error . . . is necessarily an abuse of discretion." Id. (quotations omitted).

B. Equitable Tolling

Mr. Artur argues that equitable tolling should apply to his motion to reopen based on Pereira and Niz-Chavez. He contends that, contrary to the BIA's determination, he raised equitable tolling in his motion to reopen by relying on extraordinary circumstances-namely, the holding in Pereira (Banuelos and Niz-Chavez both post-dated the motion to reopen)-and that he diligently filed the motion to reopen because he did so within six months of Pereira.

We have jurisdiction to review "a BIA decision denying a motion to reopen as untimely and rejecting a request for equitable tolling." Berdiev v. Garland, 13 F.4th 1125 1130 (10th Cir. 2021). But the Government argues, and we agree, that Mr. Artur failed to exhaust an equitable-tolling argument before the BIA. "Issue exhaustion is . . . part of the fundamental principle of administrative law that an agency must have the opportunity to rule on a challenger's arguments before the challenger may bring those arguments to court." Miguel-Pena v. Garland, 94 F.4th 1145, 1154-55 (10th Cir. 2024) (quotations omitted). In his motion to reopen, Mr. Artur asked only for sua sponte reopening in light of Pereira, not for reopening based on equitable tolling. Nor did he assert equitable tolling in his motion for...